So, I’ve been learning Portuguese, for fun, and there
haven’t been any interesting French cases recently that weren’t already well
covered elsewhere, so I thought I’d have a go at a case in Portuguese. I came
across an interesting recent case from Brazil, which touches on the same legal
principles as my previous article, that is unfair competition. The decision was
published on January 9th, and I’ve managed to find the case details on the
Brazilian courts website, but there doesn’t seem to be a detailed decision
published at least yet, so I’ve relied on secondary sources, principally
Consultor Juridico, which is linked to in the references.
In 2011 a Brahma beer was released with a new can
decoration, by Ambev. It was red, with their slogan. Subsequently, Petropolis
released a new can for Itaipava beer, which normally came in white, but with a
commemorative edition with sponsorship from Formula Stock Car which was red.
Ambev claimed that this was confusing for consumers and was intended to take
advantage of Brahma’s publicity. This therefore constituted unfair competition.
The suit was rejected at first instance as without
merit. However, the Tribunal de Justiça of Rio de Janeiro, on appeal, said that
Itaipava was exploting Brahma’s marketing, and that the competition was
therefore parasitic and unfair. Petropolis appealed to the Superior Tribunal de
Justiça.
The Superior Tribunal de Justiça is the highest
federal appeal court in Brazil, for any case which does not require
constitutional interpretation. When it is, the case can be heard by the Supreme Court, the Supremo Tribunal Federal. The court said that it was clear from the Industrial
Property Law that there was no exclusive right over any particular colour, and
therefore it was possible for two competing products to use the same colour
scheme.The name on the can, not simply the colour, is what distinguishes it
from a competitor’s product.
To grant a business, even in this narrow context,
exclusive use of the colour red would go against the spirit and purpose of the
Industrial Property Law, which is to promote free competition. The judge, João
Otávio de Noronha, said "a
finalidade da proteção
do uso de
marcas é dupla:
por um lado protegê-la contra
o proveito econômico
parasitário e o
desvio desleal de clientela
e, por outro,
evitar que o
consumidor seja confundido
quanto à procedência do
produto", which (avoiding extreme literalism) translates as “The aim of protecting trade marks is
twofold. On one hand to protect against both being taken advantage of for
another’s financial gain and against the unfair poaching of one’s clients, and
on the other hand avoiding confusion on the part of the consumer as to the
origin of the product”. On neither of these grounds could Ambev’s claim
succeed.
References
